Beal v. Harmon

• Decision Date: 31 October 1866
• Parties: JAMES A. BEAL, Defendant in Error, v. ANTOINE HARMON, Plaintiff in Error.
• Court: Missouri Supreme Court

38 Mo. 435

JAMES A. BEAL, Defendant in Error,

v.ANTOINE HARMON, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1866.

Error to Jefferson Circuit Court.

Pipkin & Thomas, for plaintiff in error.

I. This is a suit in ejectment; and to entitle the plaintiff to a recovery for waste, he must prevail in the action--R. C. 1855, p. 689, §§ 1, 2, 6, 7, 15, 16, 17.

The finding of the court presents the singular aspect of a judgment for the defendant as to the right of possession, and against him for damages to that possession. The decree of the court is repugnant; it cannot stand. Before the plaintiff in this action can prevail, he must show himself to have the better title to the possession than the defendant.

The court erred in not reforming the deed from Gamache and wife to Harmon, made on the 5th day of January, 1856, before Justice Crow. Beal had knowledge of the existence of this deed.

By the statute of 1863-4, p. 27, it is enacted that a deed acknowledged by a married woman to her separate property, since the 1st day of January, 1856, shall be valid and binding.

Beal, having acted as attorney for McMullen, the guardian of Amanda Wright, could not buy in a title adverse to that of his client--Hockenburg v. Carlisle, 5 Watts & S. 348; Galbraith v. Eldie, 8 Watts, 81.

The court therefore, in consideration of these equities operating in favor of the defendant, should have reformed the deed as to all the parties, and especially as to Beal, who will not be permitted to take advantage of his own wrong.

“A court of equity will grant relief upon clear proof of a mistake, notwithstanding that mistake is to be made out by parol evidence”--1 Fonbl. Eq. ch. 3, § 11; 6 Ves. 332-3; 1 Sto. Eq. § 152 et seq.

J. A. Beal, for defendant in error.

I. The County Court had no authority to sell the real estate of a minor for a debt due the guardian. The court could only order a sale of the ward's estate by first making the necessary appropriations for the proper education of the minor out of the personal estate; and if that be insufficient, then to order the sale of the real estate--R. C. 1845, p. 551, § 22.

There is no power given the county courts to order a sale for the ordinary debts of minors; the guardian cannot charge the ward for board and clothing, and then sell the real estate for the debt he created for the ward-- Wyatt v. Woods, 31 Mo. 351; 32 Mo. 489.

The Probate Courts have no power to order sale of real estate except in those cases provided by law, and in compliance with the power given them--21 Mo. 598.

II. Courts of equity will not reform the deed of a married woman. Mrs. Gamache (formerly Amanda Wright) acknowledged her deed before a justice, which conveying no title, the court will not decree her to make a good title--29 Mo. 171; 30 Mo. 177; 28 Mo. 438-551.

Equity will not aid a defective acknowledgment of a married woman--18 Mo. 531; Id. 544; 12 Mo. 544; R. C. 1855, p. 1577, 2 s. d. of § 6.

III. No one can apply to set aside the purchase by attorney from client except the client himself--5 John, 43-8; 14 John, 407-15; 2 John Ch 252.

WAGNER, Judge, delivered the opinion of the court.

This was an action in ejectment brought in the Circuit Court of Jefferson county to recover certain tracts of lands lying in that county, containing about sixty-five acres. The record discloses the facts to be, that the land was originally entered by Amanda Wright, a minor, whose guardian was one J. T. McMullen, and that he petitioned and obtained an order from the County Court of Jefferson county to sell the same for her maintenance and support. The land was duly appraised at the sum of one dollar and fifty cents per acre, and at the sale the guardian became the purchaser at and for the price of one dollar and ten cents per acre. The sale was approved by the court, and an order was made directing the clerk to make and execute a deed to the said guardian as the purchaser thereof; that McMullen afterwards sold the land to Ogle, who sold to Harmon the defendant, who is now in possession. The sale took place in 1847; and in 1849 Amanda Wright intermarried with one Gamache.

There was a mistake in the deed conveying the land from McMullen to Ogle and from Ogle to Harmon, so that all the land was not included, though it is clear that it was intended so to be. When the mistake was discovered, Harmon applied to Gamache and wife and Ogle to have it rectified, and finally paid eighty dollars in consideration that they would make him a new deed supplying the defects and omissions of the prior conveyance. Gamache and wife and Ogle all joined in this second conveyance, and the instrument was acknowledged before a justice of the peace in the county where the land was situated. This last deed was executed and acknowledged on the 5th day of January, 1856, but by the neglect or carelessness of the person drawing up the...